Thursday, April 16, 2009

No Prosecution of the "Bush Six" in Spain

Despite earlier reports, it now appears unlikely that the "Bush Six" will face prosecution in Spain for allegedly violating international human rights law. In March, a human rights attorney requested that Spanish Judge Baltasar Garzon consider filing charges against officials from the Bush administration who authorized the use of torture against terrorism detainees. Judge Garzon requested advice from Attorney General Candido Conde-Pumpido. Today, Conde-Pumpido stated that any prosecution of the individuals should take place in the United States:

"If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States . . . ."

Copnde-Pumpido also disputed whether the individuals violated international law by providing a legal justification for torture, rather than actually committing torture:

"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out. . . ."

Many Liberals Want Prosecutions, Obama and Panetta Do NotMany liberals have called upon the Obama administration to pursue criminal charges against Bush-era officials who authorized torture. Both President Obama and CIA Director Leon Panetta, however, have firmly stated their opposition these demands.

Because the Obama administration has already stated its opposition to torture prosecutions, the Spanish criminal investigation is largely symbolic. The prospect of criminal charges against Bush-era officials, nevertheless, caused jubilation among many liberals.

Spain Has Very Few Options for Transferring the Bush Six Out of the United StatesBecause the Obama administration opposes prosecution of the Bush Six, the United States probably would not grant any requests for extradition from Spain. Although Spain could pursue extradition in another jurisdiction if the Bush Six traveled outside of the United States, it remains unclear whether another country would grant extradition requests over the objection of the Obama administration.

Ironically, Spain could presumably use rendition and abduct the Bush Six to "justice." This option, however, is purely theoretical -- i.e., it would never happen -- despite the fact that conservatives and apparently many liberals do not disagree with government-sponsored international kidnappings.

Obama Administration in Contact With Spain Over the InvestigationEarlier this week, human rights lawyer Scott Horton published an article in the Daily Beast which states that indictments of the Bush Six are forthcoming. If Horton had accurate information when he wrote his article, Conde-Pumpido apprently stepped in and altered the course of events. Although the court could still issue indictments, this path seems unlikely given Conde-Pumpido's statements.

Horton's article also states that the Obama administration has remained in close contact with Spanish officials regarding the criminal investigation. It is unclear, however, whether the United States pressed Spain not to issue indictments or to pursue prosecutions.

The so-called Bush Six includes: former Attorney General Alberto Gonzales; former Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney's Chief of Staff, David Addington; former Department of Justice attorneys John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.

Consider This: The PoliticsIn the absence of overwhelming domestic public support for the prosecution of senior governmental officials in a foreign court, it seems highly unlikely that President Obama (or any other president) would consent to extradition. If substantial public support for prosecution existed, then the prosecutions would take place domestically.

President Obama has probably decided that prosecuting the Bush Six or transferring the group to another country for trial would be too polarizing and politically damaging and that a substantial part of the public would not favor such a course of conduct. Also, it is possible that President Obama does not want to establish a precedent that his sucessor could use against him and members of his staff in a display of brutal partisan politics. In sum, Obama is doing what is politically safe. What president would not?

No comments:

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

Pollster.Com, Now on The Huffington Post

Brian Leiter's Law School Reports

Supreme Court of the United States (SCOTUS) Blog

FindLaw News - Top Stories

News - Gainesville Sun

Privacy Policy

This site uses third-party advertising companies to serve ads when you visit our website. These companies may use information -- but never your name, address, email address, or telephone number -- about your visits to this and other websites in order to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here.